Rita v. United States

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RITA v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

No. 06–5754. Argued February 20, 2007—Decided June 21, 2007
Petitioner Rita sought a sentence lower than the recommended Federal
Guidelines range of 33 to 41 months based on his physical condition,
likely vulnerability in prison, and military experience. The judge
concluded that the appropriate sentence was 33 months, the bottom
of the Guidelines range. In affirming, the Fourth Circuit observed
that a sentence imposed within a properly calculated Guidelines
range is presumptively reasonable.
Held:
1. A court of appeals may apply a presumption of reasonableness to
a district court sentence within the Guidelines. Pp. 7–16.
(a) Such a presumption is not binding. It does not reflect strong
judicial deference of the kind that leads appeals court to grant
greater factfinding leeway to an expert agency than to a district
judge. It reflects the nature of the Guidelines-writing task that Con-
gress set for the Sentencing Commission and how the Commission
carries out that task. In 18 U. S. C. §3553(a), Congress instructed
the sentencing judge to consider (1) offense and offender characteris-
tics; (2) the need for a sentence to reflect the basic aims of sentencing,
(3) the sentences legally available; (4) the Sentencing Guidelines; (5)
Sentencing Commission policy statements; (6) the need to avoid un-
warranted disparities; and (7) the need for restitution. Statutes then
tell the Commission to write Guidelines that will carry out the same
basic §3553(a) objectives. The Guidelines as written reflect the fact
that the Sentencing Commission examined tens of thousands of sen-
tences and had the help of the law enforcement community over a
long period in an effort to fulfill this statutory mandate. They also
reflect the fact that judges (and others) can differ as to how best to
reconcile the disparate ends of punishment. The resulting Guidelines
2 RITA v. UNITED STATES

Syllabus

seek to embody the §3553(a) considerations, both in principle and in
practice, and it is fair to assume that they, insofar as practicable, re-
flect a rough approximation of sentences that might achieve
§3553(a)’s objectives. An individual sentence reflects the sentencing
judge’s determination that the Commission’s application of §3553(a)
is appropriate in the mine run of cases, that the individual case does
not differ significantly, and consequently that a Guidelines sentence
reflects a proper application of §3553(a) in the case at hand. The
“reasonableness” presumption simply recognizes these real-world cir-
cumstances. It applies only on appellate review. The sentencing
court does not enjoy the presumption’s benefit when determining the
merits of the arguments by prosecution or defense that a Guidelines
sentence should not apply. Pp. 7–12.
(b) Even if the presumption increases the likelihood that the
judge, not the jury, will find “sentencing facts,” it does not violate the
Sixth Amendment. This Court’s Sixth Amendment cases do not for-
bid a sentencing court to take account of factual matters not deter-
mined by a jury and increase the sentence accordingly to take ac-
count of the Sentencing Commission’s factual findings or
recommended sentences. The relevant Sixth Amendment inquiry is
whether a law forbids a judge to increase a sentence unless the judge
finds facts that the jury did not find. A nonbinding appellate reason-
ableness presumption for Guidelines sentences does not require the
sentencing judge to impose a Guidelines sentence. Still less does it
forbid the judge to impose a sentence higher than the Guidelines pro-
vide for the jury-determined facts standing alone. In addition, any
general conflict between §3353(a) and the Guidelines for appellate
review purposes is alleviated where judge and Commission both de-
termine that the Guidelines sentence is appropriate in the case at
hand, for that sentence likely reflects §3353(a)’s factors. Pp. 12–16.
2. The District Court properly analyzed the relevant sentencing
factors, and given the record, its ultimate sentence was reasonable.
Section 3353(c) calls for the judge to “state” his “reasons,” but does
not insist on a full opinion in every case. The appropriateness of
brevity or length, conciseness or detail, when to write, what to say,
depends upon circumstances. The law leaves much, in this respect,
to the judge’s own professional judgment. In the present context, the
sentencing judge should articulate enough to satisfy the appellate
court that he has considered the parties’ arguments and has a rea-
soned basis for exercising his own legal decisionmaking authority.
He may say less when his decision rests upon the Commission’s own
reasoning that the Guidelines sentence is proper in the typical case,
and the judge has found that the case before him is typical. But
where a party presents nonfrivolous reasons for imposing a different
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Syllabus

sentence, the judge will normally go further and explain why he has
rejected those arguments. Here, the sentencing judge’s statement of
reasons was brief but legally sufficient. The record makes clear that
the judge listened to each of Rita’s arguments for a downward depar-
ture and considered the supporting evidence before finding those cir-
cumstances insufficient to warrant a sentence lower than the Guide-
lines range. Where, as here, the matter is conceptually simple and
the record makes clear that the sentencing judge considered the evi-
dence and arguments, the law does not require a judge to write more
extensively. Pp. 16–20.
3. The Fourth Circuit, after applying the presumption, was legally
correct in holding that Rita’s sentence was not “unreasonable.” Like
the District Court and the Fourth Circuit, this Court simply cannot
say that Rita’s special circumstances—his health, fear of retaliation,
and military record—are special enough, in light of §3553(a), to re-
quire a sentence lower than the one the Guidelines provide. Rita’s
argument that the Guidelines sentence is not reasonable under
§3553(a) because it expressly declines to consider various personal
characteristics, such as his physical condition, employment record,
and military service, was not raised below and will not be considered
here. Pp. 20–21.
177 Fed. Appx. 357, affirmed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, GINSBURG, and ALITO, JJ., joined, and in
which SCALIA and THOMAS, JJ., joined as to Part III. STEVENS, J., filed a
concurring opinion, in which GINSBURG, J., joined as to all but Part II.
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting
opinion.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–5754
_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 21, 2007]

JUSTICE BREYER delivered the opinion of the Court.
The federal courts of appeals review federal sentences
and set aside those they find “unreasonable.” See, e.g.,
United States v. Booker, 543 U. S. 220, 261–263 (2005).
Several Circuits have held that, when doing so, they will
presume that a sentence imposed within a properly calcu-
lated United States Sentencing Guidelines range is a
reasonable sentence. See, e.g., 177 Fed. Appx. 357, 358
(CA4 2006) (per curiam) (case below); see also United
States Sentencing Commission, Guidelines Manual (Nov.
2006) (USSG or Guidelines). The most important question
before us is whether the law permits the courts of appeals
to use this presumption. We hold that it does.
I
A
The basic crime in this case concerns two false state-
ments which Victor Rita, the petitioner, made under oath
to a federal grand jury. The jury was investigating a gun
company called InterOrdnance. Prosecutors believed that
buyers of an InterOrdnance kit, called a “PPSH 41 ma-
chinegun ‘parts kit,’ ” could assemble a machinegun from
the kit, that those kits consequently amounted to ma-
2 RITA v. UNITED STATES

Opinion of the Court

chineguns, and that InterOrdnance had not secured
proper registrations for the importation of the guns. App.
7, 16–19, 21–22.
Rita had bought a PPSH 41 machinegun parts kit. Rita,
when contacted by the Bureau of Alcohol, Tobacco, and
Firearms and Explosives (ATF), agreed to let a federal
agent inspect the kit. Id., at 119–120; Supp. App. 5–8.
But before meeting with the agent, Rita called InterOrd-
nance and then sent back the kit. He subsequently turned
over to ATF a different kit that apparently did not amount
to a machinegun. App. 23–24, 120; Supp. App. 2–5, 8–10,
13–14.
The investigating prosecutor brought Rita before the
grand jury, placed him under oath, and asked him about
these matters. Rita denied that the Government agent
had asked him for the PPSH kit, and also denied that he
had spoken soon thereafter about the PPSH kit to some-
one at InterOrdnance. App. 19, 120–121; Supp. App. 11–
12. The Government claimed these statements were false,
charged Rita with perjury, making false statements, and
obstructing justice, and, after a jury trial, obtained convic-
tions on all counts. App. 7–13, 94, 103.
B
The parties subsequently proceeded to sentencing.
Initially, a probation officer, with the help of the parties,
and after investigating the background both of the of-
fenses and of the offender, prepared a presentence report.
See Fed. Rules Crim. Proc. 32(c)–(d); 18 U. S. C. §3552(a).
The completed report describes “offense characteristics,”
“offender characteristics,” and other matters that might be
relevant to the sentence, and then calculates a Guidelines
sentence. The report also sets forth factors potentially
relevant to a departure from the Guidelines or relevant to
the imposition of an other-than-Guidelines sentence. It
ultimately makes a sentencing recommendation based on
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Opinion of the Court

the Guidelines. App. 115–136.
In respect to “offense characteristics,” for example, the
report points out that the five counts of conviction all stem
from a single incident. Id., at 122. Hence, pursuant to the
Guidelines, the report, in calculating a recommended
sentence, groups the five counts of conviction together,
treating them as if they amounted to the single most
serious count among them (and ignoring all others). See
USSG §3D1.1. The single most serious offense in Rita’s
case is “perjury.” The relevant Guideline, §2J1.3(c)(1),
instructs the sentencing court (and the probation officer)
to calculate the Guidelines sentence for “perjury . . . in
respect to a criminal offense” by applying the Guideline for
an “accessory after the fact,” as to that criminal offense.
§2X3.1. And that latter Guideline says that the judge, for
calculation purposes, should take as a base offense level, a
level that is “6 levels lower than the offense level for the
underlying offense,” (emphasis added) (the offense that the
perjury may have helped someone commit). Here the
“underlying offense” consisted of InterOrdnance’s possible
violation of the machinegun registration law. App. 124;
USSG §2M5.2 (providing sentence for violation of 22
U. S. C. §2778(b)(2), importation of defense articles with-
out authorization). The base offense level for the gun
registration crime is 26. See USSG §2M5.2. Six levels
less is 20. And 20, says the presentence report, is the base
offense level applicable to Rita for purposes of Guidelines
sentence calculation. App. 45.
The presentence report next considers Rita’s “Criminal
History.” Id., at 125. Rita was convicted in May 1986,
and sentenced to five years’ probation for making false
statements in connection with the purchase of firearms.
Because this conviction took place more than 10 years
before the present offense, it did not count against Rita.
And because Rita had no other relevant convictions, the
Guidelines considered him as having no “criminal history
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Opinion of the Court

points.” Ibid. The report consequently places Rita in
criminal history category I, the lowest category for pur-
poses of calculating a Guidelines’ sentence.
The report goes on to describe other “Offender Charac-
teristics.” Id., at 126. The description includes Rita’s
personal and family data, Rita’s physical condition (includ-
ing a detailed description of ailments), Rita’s mental and
emotional health, the lack of any history of substance
abuse, Rita’s vocational and nonvocational education, and
Rita’s employment record. It states that he served in the
Armed Forces for over 25 years, on active duty and in the
Reserve. During that time he received 35 commendations,
awards, or medals of different kinds. The report analyzes
Rita’s financial condition. Id., at 126–132.
Ultimately, the report calculates the Guidelines sen-
tencing range. Id., at 132. The Guidelines specify for base
level 20, criminal history category I, a sentence of 33-to-41
months’ imprisonment. Ibid. The report adds that there
“appears to be no circumstance or combination of circum-
stances that warrant a departure from the prescribed
sentencing guidelines.” Id., at 133.
C
At the sentencing hearing, both Rita and the Govern-
ment presented their sentencing arguments. Each side
addressed the report. Rita argued for a sentence outside
(and lower than) the recommended Guidelines 33-to-41
month range.
The judge made clear that Rita’s argument for a lower
sentence could take either of two forms. First, Rita might
argue within the Guidelines’ framework, for a departure
from the applicable Guidelines range on the ground that
his circumstances present an “atypical case” that falls
outside the “heartland” to which the United States Sen-
tencing Commission intends each individual Guideline to
apply. USSG §5K2.0(a)(2). Second, Rita might argue that,
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Opinion of the Court

independent of the Guidelines, application of the sentenc-
ing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and
Supp. IV) warrants a lower sentence. See Booker, 543
U. S., at 259–260.
Thus, the judge asked Rita’s counsel, “Are you going to
put on evidence to show that [Rita] should be getting a
downward departure, or under 3553, your client would be
entitled to a different sentence than he should get under
sentencing guidelines?” App. 52. And the judge later
summarized:
“[Y]ou’re asking for a departure from the guidelines
or a sentence under 3553 that is lower than the guide-
lines, and here are the reasons:
“One, he is a vulnerable defendant because he’s
been involved in [government criminal justice] work
which has caused people to become convicted crimi-
nals who are in prison and there may be retribution
against him.
“Two, his military experience . . . . ” Id., at 64–65.
Counsel agreed, while adding that Rita’s poor physical
condition constituted a third reason. And counsel said
that he rested his claim for a lower sentence on “[j]ust
[those] three” special circumstances, “[p]hysical condition,
vulnerability in prison and the military service.” Id., at
65. Rita presented evidence and argument related to
these three factors. The Government, while not asking for
a sentence higher than the report’s recommended Guide-
lines range, said that Rita’s perjury had interfered with
the Government’s potential “obstruction of justice” claim
against InterOrdnance and that Rita, as a former Gov-
ernment criminal justice employee, should have known
better than to commit perjury. Id., at 74–77. The sentenc-
ing judge asked questions about each factor.
After hearing the arguments, the judge concluded that
he was “unable to find that the [report’s recommended]
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Opinion of the Court

sentencing guideline range . . . is an inappropriate guide-
line range for that, and under 3553 . . . the public needs to
be protected if it is true, and I must accept as true the jury
verdict.” Id., at 87. The court concluded: “So the Court
finds that it is appropriate to enter” a sentence at the
bottom of the Guidelines range, namely a sentence of
imprisonment “for a period of 33 months.” Ibid.
D
On appeal, Rita argued that his 33-month sentence was
“unreasonable” because (1) it did not adequately take
account of “the defendant’s history and characteristics,”
and (2) it “is greater than necessary to comply with the
purposes of sentencing set forth in 18 U. S. C. §3553(a)(2).”
Brief for Appellant in No. 05–4674 (CA4), pp. i, 8. The
Fourth Circuit observed that it must set aside a sentence
that is not “reasonable.” The Circuit stated that “a sen-
tence imposed within the properly calculated Guidelines
range . . . is presumptively reasonable.” It added that
“while we believe that the appropriate circumstances for
imposing a sentence outside the guideline range will
depend on the facts of individual cases, we have no reason
to doubt that most sentences will continue to fall within
the applicable guideline range.” The Fourth Circuit then
rejected Rita’s arguments and upheld the sentence. Ibid.
(internal quotation marks omitted).
E
Rita petitioned for a writ of certiorari. He pointed out
that the Circuits are split as to the use of a presumption of
reasonableness for within-Guidelines sentences. Compare
United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006)
(uses presumption); United States v. Green, 436 F. 3d 449,
457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d
551, 554 (CA5 2006) (same); United States v. Williams,
436 F. 3d 706, 708 (CA6 2006) (same); United States v.
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Opinion of the Court

Mykytiuk, 415 F. 3d 606, 608 (CA7 2005) (same); United
States v. Lincoln, 413 F. 3d 716, 717 (CA8 2005) (same);
and United States v. Kristl, 437 F. 3d 1050, 1053–1054
(CA10 2006) (per curiam) (same), with United States v.
Jimenez-Beltre, 440 F. 3d 514, 518 (CA1 2006) (en banc)
(does not use presumption), United States v. Fernandez,
443 F. 3d 19, 27 (CA2 2006) (same); United States v. Coo-
per, 437 F. 3d 324, 331 (CA3 2006) (same); and United
States v. Talley, 431 F. 3d 784, 788 (CA11 2005) (per cu-
riam) (same).
We consequently granted Rita’s petition. We agreed to
decide whether a circuit court may afford a “presumption
of reasonableness” to a “within-Guidelines” sentence. We
also agreed to decide whether the District Court properly
analyzed the relevant sentencing factors and whether,
given the record, the District Court’s ultimate choice of a
33-month sentence was “unreasonable.”
II
The first question is whether a court of appeals may
apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentenc-
ing Guidelines. We conclude that it can.
A
For one thing, the presumption is not binding. It does
not, like a trial-related evidentiary presumption, insist
that one side, or the other, shoulder a particular burden of
persuasion or proof lest they lose their case. C.f., e.g.,
Raytheon Co. v. Hernandez, 540 U. S. 44, 49–50, n. 3
(2003) (citing Reeves v. Sanderson Plumbing Products,
Inc., 530 U. S. 133, 143 (2000), and McDonnell Douglas
Corp. v. Green, 411 U. S. 792, 802 (1973)). Nor does the
presumption reflect strong judicial deference of the kind
that leads appeals courts to grant greater factfinding
leeway to an expert agency than to a district judge.
8 RITA v. UNITED STATES

Opinion of the Court

Rather, the presumption reflects the fact that, by the time
an appeals court is considering a within-Guidelines sen-
tence on review, both the sentencing judge and the Sen-
tencing Commission will have reached the same conclu-
sion as to the proper sentence in the particular case. That
double determination significantly increases the likelihood
that the sentence is a reasonable one.
Further, the presumption reflects the nature of the
Guidelines-writing task that Congress set for the Commis-
sion and the manner in which the Commission carried out
that task. In instructing both the sentencing judge and
the Commission what to do, Congress referred to the basic
sentencing objectives that the statute sets forth in 18
U. S. C. §3553(a) (2000 ed. and Supp. IV). That provision
tells the sentencing judge to consider (1) offense and of-
fender characteristics; (2) the need for a sentence to reflect
the basic aims of sentencing, namely (a) “just punishment”
(retribution), (b) deterrence, (c) incapacitation, (d) reha-
bilitation; (3) the sentences legally available; (4) the Sen-
tencing Guidelines; (5) Sentencing Commission policy
statements; (6) the need to avoid unwarranted disparities;
and (7) the need for restitution. The provision also tells
the sentencing judge to “impose a sentence sufficient, but
not greater than necessary, to comply with” the basic aims
of sentencing as set out above.
Congressional statutes then tell the Commission to
write Guidelines that will carry out these same §3553(a)
objectives. Thus, 28 U. S. C. §991(b) indicates that one of
the Commission’s basic objectives is to “assure the meeting
of the purposes of sentencing as set forth in [§3553(a)(2)].”
The provision adds that the Commission must seek to
“provide certainty and fairness” in sentencing, to “avoi[d]
unwarranted sentencing disparities,” to “maintai[n] suffi-
cient flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken
into account in the establishment of general sentencing
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Opinion of the Court

practices,” and to “reflect, to the extent practicable [sen-
tencing-relevant] advancement in [the] knowledge of
human behavior.” Later provisions specifically instruct
the Commission to write the Guidelines with reference to
this statement of purposes, the statement that itself refers
to §3553(a). See 28 U. S. C. §§994(f), and 994(m).
The upshot is that the sentencing statutes envision both
the sentencing judge and the Commission as carrying out
the same basic §3553(a) objectives, the one, at retail, the
other at wholesale.
The Commission has made a serious, sometimes contro-
versial, effort to carry out this mandate. The Commission,
in describing its Guidelines-writing efforts, refers to these
same statutory provisions. It says that it has tried to
embody in the Guidelines the factors and considerations
set forth in §3553(a). The Commission’s introductory
statement recognizes that Congress “foresees guidelines
that will further the basic purposes of criminal punish-
ment, i.e., deterring crime, incapacitating the offender,
providing just punishment, and rehabilitating the of-
fender.” USSG §1A.1, intro to comment., pt. A, ¶2 (The
Statutory Mission). It adds that Congress “sought uni-
formity in sentencing by narrowing the wide disparity in
sentences imposed by different federal courts for similar
criminal conduct,” as well as “proportionality in sentenc-
ing through a system that imposes appropriately different
sentences for criminal conduct of different severity.” Ibid.
The Basic Approach).
The Guidelines commentary explains how, despite
considerable disagreement within the criminal justice
community, the Commission has gone about writing
Guidelines that it intends to embody these ends. It says,
for example, that the goals of uniformity and proportional-
ity often conflict. The commentary describes the difficul-
ties involved in developing a practical sentencing system
that sensibly reconciles the two ends. It adds that a “phi-
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Opinion of the Court

losophical problem arose when the Commission attempted
to reconcile the differing perceptions of the purposes of
criminal punishment.” Some would emphasize moral
culpability and “just punishment”; others would empha-
size the need for “crime control.” Rather than choose
among differing practical and philosophical objectives, the
Commission took an “empirical approach,” beginning with
an empirical examination of 10,000 presentence reports
setting forth what judges had done in the past and then
modifying and adjusting past practice in the interests of
greater rationality, avoiding inconsistency, complying with
congressional instructions, and the like. Id., ¶3, at 3.
The Guidelines as written reflect the fact that the Sen-
tencing Commission examined tens of thousands of sen-
tences and worked with the help of many others in the law
enforcement community over a long period of time in an
effort to fulfill this statutory mandate. They also reflect
the fact that different judges (and others) can differ as to
how best to reconcile the disparate ends of punishment.
The Commission’s work is ongoing. The statutes and
the Guidelines themselves foresee continuous evolution
helped by the sentencing courts and courts of appeals in
that process. The sentencing courts, applying the Guide-
lines in individual cases may depart (either pursuant to
the Guidelines or, since Booker, by imposing a non-
Guidelines sentence). The judges will set forth their rea-
sons. The Courts of Appeals will determine the reason-
ableness of the resulting sentence. The Commission will
collect and examine the results. In doing so, it may obtain
advice from prosecutors, defenders, law enforcement
groups, civil liberties associations, experts in penology,
and others. And it can revise the Guidelines accordingly.
See generally 28 U. S. C. §994(p) and note following §994
(Commission should review and amend Guidelines as
necessary, and Congress has power to revoke or amend
Guidelines); Mistretta v. United States, 488 U. S. 361,
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Opinion of the Court

393–394 (1989); USSG §1B1.10(c) (listing 24 amendments
promulgated in response to evolving sentencing concerns);
USSG §1A1.1, comment.
The result is a set of Guidelines that seek to embody the
§3553(a) considerations, both in principle and in practice.
Given the difficulties of doing so, the abstract and poten-
tially conflicting nature of §3553(a)’s general sentencing
objectives, and the differences of philosophical view among
those who work within the criminal justice community as
to how best to apply general sentencing objectives, it is
fair to assume that the Guidelines, insofar as practicable,
reflect a rough approximation of sentences that might
achieve §3553(a)’s objectives.
An individual judge who imposes a sentence within the
range recommended by the Guidelines thus makes a
decision that is fully consistent with the Commission’s
judgment in general. Despite JUSTICE SOUTER’s fears to
the contrary, post, at 7–9 (dissenting opinion), the courts
of appeals’ “reasonableness” presumption, rather than
having independent legal effect, simply recognizes the
real-world circumstance that when the judge’s discretion-
ary decision accords with the Commission’s view of the
appropriate application of §3553(a) in the mine run of
cases, it is probable that the sentence is reasonable. In-
deed, even the Circuits that have declined to adopt a
formal presumption also recognize that a Guidelines
sentence will usually be reasonable, because it reflects
both the Commission’s and the sentencing court’s judg-
ment as to what is an appropriate sentence for a given
offender. See Fernandez, 443 F. 2d, at 27; Cooper, 437
F. 3d, at 331; Talley, 431 F. 3d, at 788.
We repeat that the presumption before us is an appel-
late court presumption. Given our explanation in Booker
that appellate “reasonableness” review merely asks
whether the trial court abused its discretion, the presump-
tion applies only on appellate review. The sentencing
12 RITA v. UNITED STATES

Opinion of the Court

judge, as a matter of process, will normally begin by con-
sidering the presentence report and its interpretation of
the Guidelines. 18 U. S. C. §3552(a); Fed. Rule Crim.
Proc. 32. He may hear arguments by prosecution or de-
fense that the Guidelines sentence should not apply, per-
haps because (as the Guidelines themselves foresee) the
case at hand falls outside the “heartland” to which the
Commission intends individual Guidelines to apply, USSG
§5K2.O, perhaps because the Guidelines sentence itself
fails properly to reflect §3553(a) considerations, or perhaps
because the case warrants a different sentence regardless.
See Rule 32(f). Thus, the sentencing court subjects the
defendant’s sentence to the thorough adversarial testing
contemplated by federal sentencing procedure. See Rules
32(f), (h), (i)(C) and (i)(D); see also Burns v. United States,
501 U. S. 129, 136 (1991) (recognizing importance of notice
and meaningful opportunity to be heard at sentencing). In
determining the merits of these arguments, the sentencing
court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply. Booker, 543
U. S., at 259–260.
B
Rita and his supporting amici make two further argu-
ments against use of the presumption. First, Rita points
out that many individual Guidelines apply higher sen-
tences in the presence of special facts, for example, bran-
dishing a weapon. In many cases, the sentencing judge,
not the jury, will determine the existence of those facts. A
pro-Guidelines “presumption of reasonableness” will in-
crease the likelihood that courts of appeals will affirm
such sentences, thereby increasing the likelihood that
sentencing judges will impose such sentences. For that
reason, Rita says, the presumption raises Sixth Amend-
ment “concerns.” Brief for Petitioner 28.
In our view, however, the presumption, even if it in-
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Opinion of the Court

creases the likelihood that the judge, not the jury, will find
“sentencing facts,” does not violate the Sixth Amendment.
This Court’s Sixth Amendment cases do not automatically
forbid a sentencing court to take account of factual mat-
ters not determined by a jury and to increase the sentence
in consequence. Nor do they prohibit the sentencing judge
from taking account of the Sentencing Commission’s fac-
tual findings or recommended sentences. See Cunning-
ham v. California, 549 U. S. ___, ___–___ (2007) (slip op.,
at 8–9), (citing Booker, supra, at 243–244; Blakely v.
Washington, 542 U. S. 296, 304–305 (2004); Ring v. Ari-
zona, 536 U. S. 584, 602 (2002); and Apprendi v. New
Jersey, 530 U. S. 466, 471 (2000)).
The Sixth Amendment question, the Court has said, is
whether the law forbids a judge to increase a defendant’s
sentence unless the judge finds facts that the jury did not
find (and the offender did not concede). Blakely, supra, at
303–304 (“When a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not found
all the facts which the law makes essential to the punish-
ment and the judge exceeds his proper authority” (internal
quotation marks and citation omitted)); see Cunningham,
supra, at ____, (slip op., 10, 11) (discussing Blakely) (“The
judge could not have sentenced Blakely above the stan-
dard range without finding the additional fact of deliber-
ate cruelty,” “[b]ecause the judge in Blakely’s case could
not have imposed a sentence outside the standard range
without finding an additional fact, the top of that range
. . . was the relevant” maximum sentence for Sixth
Amendment purposes); Booker, 543 U. S., at 244 (“Any
fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt”); id., at 232 (discussing
Blakely) (“We rejected the State’s argument that the jury
14 RITA v. UNITED STATES

Opinion of the Court

verdict was sufficient to authorize a sentence within the
general 10-year sentence for class B felonies, noting that
under Washington law, the judge was required to find
additional facts in order to impose the greater 90-month
sentence”) (emphasis in original)).
A nonbinding appellate presumption that a Guidelines
sentence is reasonable does not require the sentencing
judge to impose that sentence. Still less does it forbid the
sentencing judge from imposing a sentence higher than
the Guidelines provide for the jury-determined facts
standing alone. As far as the law is concerned, the judge
could disregard the Guidelines and apply the same sen-
tence (higher than the statutory minimum or the bottom
of the unenhanced Guidelines range) in the absence of the
special facts (say, gun brandishing) which, in the view of
the Sentencing Commission, would warrant a higher
sentence within the statutorily permissible range. Thus,
our Sixth Amendment cases do not forbid appellate court
use of the presumption.
JUSTICE SCALIA concedes that the Sixth Amendment
concerns he foresees are not presented by this case. Post,
at 7 (concurring in part and concurring in judgment). And
his need to rely on hypotheticals to make his point is con-
sistent with our view that the approach adopted here will
not “raise a multitude of constitutional problems.” Clark
v. Martinez, 543 U. S. 371, 380–381 (2005). Similarly,
JUSTICE SCALIA agrees that we have never held that “the
Sixth Amendment prohibits judges from ever finding any
facts” relevant to sentencing. Post, at 6. In sentencing, as
in other areas, district judges at times make mistakes that
are substantive. At times, they will impose sentences that
are unreasonable. Circuit courts exist to correct such
mistakes when they occur. Our decision in Booker recog-
nized as much, 543 U. S., at 260–264. Booker held uncon-
stitutional that portion of the Guidelines that made them
mandatory. Id., at 233–234, 243–244. It also recognized
 Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

that when district courts impose discretionary sentences,
which are reviewed under normal appellate principles by
courts of appeals, such a sentencing scheme will ordinarily
raise no Sixth Amendment concern. Ibid; see id., at 233
(opinion for the Court by STEVENS, J.) (“Indeed, everyone
agrees that the constitutional issues presented by these
cases would have been avoided entirely if Congress had
omitted from the [federal sentencing statute] the provi-
sions that make the Guidelines binding on district
judges”). That being so, our opinion in Booker made clear
that today’s holding does not violate the Sixth Amend-
ment.
Rita may be correct that the presumption will encourage
sentencing judges to impose Guidelines sentences. But we
do not see how that fact could change the constitutional
calculus. Congress sought to diminish unwarranted sen-
tencing disparity. It sought a Guidelines system that
would bring about greater fairness in sentencing through
increased uniformity. The fact that the presumption
might help achieve these congressional goals does not
provide cause for holding the presumption unlawful as
long as the presumption remains constitutional. And,
given our case law, we cannot conclude that the presump-
tion itself violates the Sixth Amendment.
The fact that we permit courts of appeals to adopt a
presumption of reasonableness does not mean that courts
may adopt a presumption of unreasonableness. Even the
Government concedes that appellate courts may not pre-
sume that every variance from the advisory Guidelines is
unreasonable. See Brief for United States 34–35. Several
courts of appeals have also rejected a presumption of
unreasonableness. See, e.g., United States v. Howard, 454
F. 3d 700, 703 (CA7 2006); United States v. Matheny, 450
F. 3d 633, 642 (CA6 2006); United States v. Myers, 439
F. 3d 415, 417 (CA8 2006); United States v. Moreland, 437
F. 3d 424, 433 (CA4 2006). However, a number of circuits
16 RITA v. UNITED STATES

Opinion of the Court

adhere to the proposition that the strength of the justifica-
tion needed to sustain an outside-Guidelines sentence
varies in proportion to the degree of the variance. See,
e.g., United States v. Smith, 445 F. 3d 1, 4 (CA1 2006);
United States v. Moreland, 437 F. 3d 424, 434 (CA4 2006);
United States v. Armendariz, 451 F. 3d 352, 358 (CA5
2006); United States v. Davis, 458 F. 3d 491, 496 (CA6
2006); United States v. Dean, 414 F. 3d 725, 729 (CA7
2005); United States v. Dalton, 404 F. 3d 1029, 1033 (CA8
2005); United States v. Bishop, 469 F. 3d 896, 907 (CA10
2006); United States v. Crisp, 454 F. 3d 1285, 1291–1292
(CA11 2006). We will consider that approach next Term in
United States v. Gall, No. 06–7949.
Second, Rita and his amici claim that use of a pro-
Guidelines presumption on appeal conflicts with Congress’
insistence that sentencing judges apply the factors set
forth in 18 U. S. C. §3553(a) (2000 ed., Supp. IV) (and that
the resulting sentence be “sufficient, but not greater than
necessary, to comply with the purposes” of sentencing set
forth in that statute). We have explained above, however,
why we believe that, where judge and Commission both
determine that the Guidelines sentences is an appropriate
sentence for the case at hand, that sentence likely reflects
the §3553(a) factors (including its “not greater than neces-
sary” requirement). See supra, at 8. This circumstance
alleviates any serious general conflict between §3553(a)
and the Guidelines, for the purposes of appellate review.
And, for that reason, we find that nothing in §3553(a)
renders use of the presumption unlawful.

III
We next turn to the question whether the District Court
properly analyzed the relevant sentencing factors. In
particular, Rita argues that the court took inadequate
account of §3553(c) (2000 ed., Supp. IV), a provision that
 Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

requires a sentencing judge, “at the time of sentencing,” to
“state in open court the reasons for its imposition of the
particular sentence.” In our view, given the straightfor-
ward, conceptually simple arguments before the judge, the
judge’s statement of reasons here, though brief, was le-
gally sufficient.
The statute does call for the judge to “state” his “rea-
sons.” And that requirement reflects sound judicial prac-
tice. Judicial decisions are reasoned decisions. Confi-
dence in a judge’s use of reason underlies the public’s trust
in the judicial institution. A public statement of those
reasons helps provide the public with the assurance that
creates that trust.
That said, we cannot read the statute (or our precedent)
as insisting upon a full opinion in every case. The appro-
priateness of brevity or length, conciseness or detail, when
to write, what to say, depends upon circumstances. Some-
times a judicial opinion responds to every argument;
sometimes it does not; sometimes a judge simply writes
the word “granted,” or “denied” on the face of a motion
while relying upon context and the parties’ prior argu-
ments to make the reasons clear. The law leaves much, in
this respect, to the judge’s own professional judgment.
In the present context, a statement of reasons is impor-
tant. The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority. See, e.g., United
States v. Taylor, 487 U. S. 326, 336–337 (1988). Nonethe-
less, when a judge decides simply to apply the Guidelines
to a particular case, doing so will not necessarily require
lengthy explanation. Circumstances may well make clear
that the judge rests his decision upon the Commission’s
own reasoning that the Guidelines sentence is a proper
sentence (in terms of §3353(a) and other congressional
mandates) in the typical case, and that the judge has
18 RITA v. UNITED STATES

Opinion of the Court

found that the case before him is typical. Unless a party
contests the Guidelines sentence generally under
§3553(a)—that is argues that the Guidelines reflect an
unsound judgment, or, for example, that they do not gen-
erally treat certain defendant characteristics in the proper
way—or argues for departure, the judge normally need say
no more. Cf. §3553(c)(2) (2000 ed., Supp. IV). (Although,
often at sentencing a judge will speak at length to a de-
fendant, and this practice may indeed serve a salutary
purpose.)
Where the defendant or prosecutor presents nonfrivo-
lous reasons for imposing a different sentence, however,
the judge will normally go further and explain why he has
rejected those arguments. Sometimes the circumstances
will call for a brief explanation; sometimes they will call
for a lengthier explanation. Where the judge imposes a
sentence outside the Guidelines, the judge will explain
why he has done so. To our knowledge, an ordinary ex-
planation of judicial reasons as to why the judge has, or
has not, applied the Guidelines triggers no Sixth Amend-
ment “jury trial” requirement. Cf. Booker, 543 U. S., at
233 (“For when a trial judge exercises his discretion to
select a specific sentence within a defined range, the de-
fendant has no right to a jury determination of the facts
that the judge deems relevant”) and id., at 242 (require-
ment of finding, not articulation of it, creates Sixth
Amendment problem).
By articulating reasons, even if brief, the sentencing
judge not only assures reviewing courts (and the public)
that the sentencing process is a reasoned process but also
helps that process evolve. The sentencing judge has ac-
cess to, and greater familiarity with, the individual case
and the individual defendant before him than the Com-
mission or the appeals court. That being so, his reasoned
sentencing judgment, resting upon an effort to filter the
Guidelines’ general advice through §3553(a)’s list of fac-
 Cite as: 551 U. S. ____ (2007) 19

Opinion of the Court

tors, can provide relevant information to both the court of
appeals and ultimately the Sentencing Commission. The
reasoned responses of these latter institutions to the
sentencing judge’s explanation should help the Guidelines
constructively evolve over time, as both Congress and the
Commission foresaw. See generally supra, at 11.
In the present case the sentencing judge’s statement of
reasons was brief but legally sufficient. Rita argued for a
downward departure from the 33-to-41 month Guidelines
sentence on the basis of three sets of special circum-
stances: health, fear of retaliation in prison, and military
record. See App. 40–47. He added that, in any event,
these same circumstances warrant leniency beyond that
contemplated by the Guidelines.
The record makes clear that the sentencing judge lis-
tened to each argument. The judge considered the sup-
porting evidence. The judge was fully aware of defen-
dant’s various physical ailments and imposed a sentence
that takes them into account. The judge understood that
Rita had previously worked in the immigration service
where he had been involved in detecting criminal offenses.
And he considered Rita’s lengthy military service, includ-
ing over 25 years of service, both on active duty and in the
Reserve, and Rita’s receipt of 35 medals, awards, and
nominations.
The judge then simply found these circumstances insuf-
ficient to warrant a sentence lower than the Guidelines
range of 33 to 45 months. Id., at 87. He said that this
range was not “inappropriate.” (This, of course, is not the
legal standard for imposition of sentence, but taken in
context it is plain that the judge so understood.) He im-
mediately added that he found that the 33-month sentence
at the bottom of the Guidelines range was “appropriate.”
Ibid. He must have believed that there was not much
more to say.
We acknowledge that the judge might have said more.
20 RITA v. UNITED STATES

Opinion of the Court

He might have added explicitly that he had heard and
considered the evidence and argument; that (as no one
before him denied) he thought the Commission in the
Guidelines had determined a sentence that was proper in
the minerun of roughly similar perjury cases; and that he
found that Rita’s personal circumstances here were simply
not different enough to warrant a different sentence. But
context and the record make clear that this, or similar,
reasoning, underlies the judge’s conclusion. Where a
matter is as conceptually simple as in the case at hand
and the record makes clear that the sentencing judge
considered the evidence and arguments, we do not believe
the law requires the judge to write more extensively.
IV
We turn to the final question: Was the Court of Appeals,
after applying its presumption, legally correct in holding
that Rita’s sentence (a sentence that applied, and did not
depart from, the relevant sentencing Guideline) was not
“unreasonable”? In our view, the Court of Appeals’ conclu-
sion was lawful.
As we previously said, see Part I, supra, the crimes at
issue are perjury and obstruction of justice. In essence
those offenses involved the making of knowingly false,
material statements under oath before a grand jury,
thereby impeding its criminal investigation. The Guide-
lines provide for a typical such offense a base offense level
of 20, 6 levels below the level provided for a simple viola-
tion of the crime being investigated (here the unlawful
importation of machineguns). The offender, Rita, has no
countable prior offenses and consequently falls within
criminal history category I. The intersection of base of-
fense level 20 and criminal history category I sets forth a
sentencing range of imprisonment of 33 to 45 months.
Rita argued at sentencing that his circumstances are
special. He based this argument upon his health, his fear
 Cite as: 551 U. S. ____ (2007) 21

Opinion of the Court

of retaliation, and his prior military record. His sentence
explicitly takes health into account by seeking assurance
that the Bureau of Prisons will provide appropriate treat-
ment. The record makes out no special fear of retaliation,
asserting only that the threat is one that any former law
enforcement official might suffer. Similarly, though Rita
has a lengthy and distinguished military record, he did not
claim at sentencing that military service should ordinarily
lead to a sentence more lenient than the sentence the
Guidelines impose. Like the District Court and the Court
of Appeals, we simply cannot say that Rita’s special cir-
cumstances are special enough that, in light of §3553(a),
they require a sentence lower than the sentence the
Guidelines provide.
Finally, Rita and supporting amici here claim that the
Guidelines sentence is not reasonable under §3553(a)
because it expressly declines to consider various personal
characteristics of the defendant, such as physical condi-
tion, employment record, and military service, under the
view that these factors are “not ordinarily relevant.”
USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this
argument below, and we shall not consider it.
* * *
For the foregoing reasons, the judgment of the Court of
Appeals is
Affirmed.
 Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–5754
_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 21, 2007]

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins
as to all but Part II, concurring.
It is no secret that the Court’s remedial opinion in
United States v. Booker, 543 U. S. 220 (2005), was not
unanimous. See id., at 272 (STEVENS, J., dissenting). But
Booker is now settled law and must be accepted as such.
See B. Cardozo, The Nature of the Judicial Process 149
(1921) (“[T]he labor of judges would be increased almost to
the breaking point if every past decision could be reopened
in every case, and one could not lay one’s own course of
bricks on the secure foundation of the courses laid by
others who had gone before him”). Therefore, our task
today is to apply Booker’s “reasonableness” standard to a
District Judge’s decision to impose a sentence within the
range recommended by United States Sentencing Guide-
lines that are now advisory, rather than binding.
I
Simply stated, Booker replaced the de novo standard of
review required by 18 U. S. C. §3742(e) with an abuse-of-
discretion standard that we called “ ‘reasonableness’ ”
review. 543 U. S., at 262. We noted in Booker that the de
novo standard was a recent addition to the law. Prior to
2003, appellate courts reviewed sentencing departures for
abuse of discretion under our decision in Koon v. United
States, 518 U. S. 81 (1996). In 2003, however, Congress
2 RITA v. UNITED STATES

STEVENS, J., concurring

overruled Koon and added the de novo standard to
§3742(e). See Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today Act of 2003,
§401(d)(1), 117 Stat. 670. Recognizing that “the reasons
for th[is] revisio[n]—to make Guidelines sentencing even
more mandatory than it had been— . . . ceased to be rele-
vant” in light of the Court’s constitutional holding,1 Booker
excised the portion of §3742(e) that directed courts of
appeals to apply the de novo standard. 543 U. S., at 261.
Critically, we did not touch the portions of §3742(e) requir-
ing appellate courts to “give due regard to the opportunity
of the district court to judge the credibility of the wit-
nesses,” to “accept the findings of fact of the district court
unless they are clearly erroneous,” and to “give due defer-
ence to the district court’s application of the guidelines to
the facts.” By leaving those portions of the statute intact
while severing the portion mandating a de novo standard
of review, Booker restored the abuse-of-discretion stan-
dard identified in three earlier cases: Pierce v. Underwood,
487 U. S. 552, 558–560 (1988), Cooter & Gell v. Hartmarx
Corp., 496 U. S. 384, 403–405 (1990), and Koon. See
Booker, 543 U. S., at 260.2

——————
1 See 543 U. S., at 233 (opinion for the Court by STEVENS, J.) (“We

have never doubted the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range. Indeed, everyone
agrees that the constitutional issues presented by these cases would
have been avoided entirely if Congress had omitted from the [Sentenc-
ing Reform Act of 1984] the provisions that make the Guidelines
binding on district judges” (citations omitted)).
2 In fact, Booker expressly equated the new “reasonableness” stan-

dard with the old abuse-of-discretion standard used to review sentenc-
ing departures. See id., at 262 (“ ‘Reasonableness’ standards are not
foreign to sentencing law. The Act has long required their use in
important sentencing circumstances—both on review of departures, see
18 U. S. C. §3742(e)(3) (1994 ed.), and on review of sentences imposed
where there was no applicable Guideline, see §§3742(a)(4), (b)(4), (e)(4)”
(emphasis added)).
 Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., concurring

In Pierce, we considered whether the District Court had
properly awarded attorney’s fees based on a determination
that the Government’s litigation position was not “sub-
stantially justified” within the meaning of the Equal Ac-
cess to Justice Act, 28 U. S. C. §2412(d). Because the Act
did not specify a standard of review, we found it necessary
to rely on several “significant relevant factors” that per-
suaded us to apply an “ ‘abuse of discretion’ ” standard.
487 U. S., at 559. One factor was that a district judge was
“ ‘better positioned’ ” than an appellate judge to decide the
issue. Id., at 560 (quoting Miller v. Fenton, 474 U. S. 104,
114 (1985)). We noted that a district court, through its
participation in “settlement conferences and other pretrial
activities,” “may have insights not conveyed by the record,
into such matters as whether particular evidence was
worthy of being relied upon.” 487 U. S., at 560. We like-
wise noted that “even where the district judge’s full
knowledge of the factual setting can be acquired by the
appellate court, that acquisition will often come at un-
usual expense.” Ibid. A second factor that we found sig-
nificant was the impracticability of formulating a rule of
decision for an issue that may involve “ ‘multifarious,
fleeting, special, narrow facts that utterly resist generali-
zation.’ ” Id., at 561–562. In Cooter & Gell, we held that
both of these factors supported an “abuse-of-discretion”
standard for review of a district judge’s imposition of
sanctions for violations of Rule 11 of the Federal Rules of
Civil Procedure. See 496 U. S., at 403–405. A third factor,
the District Court’s special knowledge about “the local
bar’s litigation practices,” also supported the abuse-of-
discretion standard. Id., at 404. We further noted that
“[d]eference to the determination of courts on the front
lines of litigation will enhance these courts’ ability to
control the litigants before them.” Ibid.
Recognizing that these factors bear equally upon a trial
judge’s sentencing decision, Koon expressly applied the
4 RITA v. UNITED STATES

STEVENS, J., concurring

principles of Pierce and Cooter & Gell to the sentencing
context. See Koon, 518 U. S., at 99. We adopted the same
abuse-of-discretion standard, unanimously holding that a
district court’s decision to depart from the Guidelines “will
in most cases be due substantial deference, for it embodies
the traditional exercise of discretion by a sentencing
court.” Id, at 98. Echoing our earlier opinions, we added
that “[d]istrict courts have an institutional advantage over
appellate courts” because they “must make a refined
assessment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day experience in
criminal sentencing.” Ibid. We also relied on the follow-
ing statement in our opinion in Williams v. United States,
503 U. S. 193 (1992):
“The development of the guideline sentencing regime
has not changed our view that, except to the extent
specifically directed by statute, ‘it is not the role of an
appellate court to substitute its judgment for that of
the sentencing court as to the appropriateness of a
particular sentence.’ ” Id., at 205 (quoting Solem v.
Helm, 463 U. S. 277, 290, n. 16 (1983)).
These basic considerations about the nature of sentenc-
ing have not changed in a post-Booker world. While the
specific holding in Koon concerned only the scope of the
trial judge’s discretion on whether to depart from the
Guidelines, now that the Guidelines are no longer manda-
tory, our reasoning applies with equal force to the sentenc-
ing judge’s decision “ ‘as to the appropriateness of a par-
ticular sentence.’ ” Williams, 503 U. S., at 205. After
Booker, appellate courts are now to assess a district court’s
exercise of discretion “with regard to §3553(a).” 543 U. S.,
at 261. As we explained, “Section 3553(a) remains in
effect, and sets forth numerous factors that guide sentenc-
ing. Those factors in turn will guide appellate courts, as
they have in the past, in determining whether a sentence
 Cite as: 551 U. S. ____ (2007) 5

STEVENS, J., concurring

is unreasonable.” Ibid.
Guided by these §3553(a) factors, Booker’s abuse-of-
discretion standard directs appellate courts to evaluate
what motivated the District Judge’s individualized sen-
tencing decision. While reviewing courts may presume
that a sentence within the advisory Guidelines is reason-
able, appellate judges must still always defer to the sen-
tencing judge’s individualized sentencing determination.
As we stated in Koon, “[i]t has been uniform and constant
in the federal judicial tradition for the sentencing judge to
consider every convicted person as an individual and every
case as a unique study in the human failings that some-
times mitigate, sometimes magnify, the crime and the
punishment to ensue.” 518 U. S., at 113. The Commission
has not developed any standards or recommendations that
affect sentencing ranges for many individual characteris-
tics. Matters such as age, education, mental or emotional
condition, medical condition (including drug or alcohol
addiction), employment history, lack of guidance as a
youth, family ties, or military, civic, charitable, or public
service are not ordinarily considered under the Guidelines.
See United States Sentencing Commission, Guidelines
Manual §§5H1.1–6, 11, and 12 (Nov. 2006).3 These are,
however, matters that §3553(a) authorizes the sentencing
judge to consider. See, e.g., 18 U. S. C. §3553(a)(1). As
such, they are factors that an appellate court must con-
——————
3 See also Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 19–20
(1988) (“The Commission extensively debated which offender character-
istics should make a difference in sentencing; that is, which character-
istics were important enough to warrant formal reflection within the
Guidelines and which should constitute possible grounds for depar-
ture. . . . Eventually, in light of the arguments based in part on consid-
erations of fairness and in part on the uncertainty as to how a sentenc-
ing judge would actually account for the aggravating and/or mitigating
factors . . . the current offender characteristics rules look primarily to
past records of convictions” (footnotes omitted)).
6 RITA v. UNITED STATES

STEVENS, J., concurring

sider under Booker’s abuse-of-discretion standard.
My disagreement with JUSTICE SCALIA and JUSTICE
SOUTER rests on the above understanding of Booker’s
standard of appellate review. I do not join JUSTICE
SCALIA’s opinion because I believe that the purely proce-
dural review he advocates is inconsistent with our reme-
dial opinion in Booker, which plainly contemplated that
reasonableness review would contain a substantive com-
ponent. See 543 U. S., at 260–264. After all, a district
judge who gives harsh sentences to Yankees fans and
lenient sentences to Red Sox fans would not be acting
reasonably even if her procedural rulings were impeccable.
Moreover, even if some future unusually harsh sentence
might violate the Sixth Amendment because it exceeds
some yet-to-be-defined judicial standard of reasonable-
ness, JUSTICE SCALIA correctly acknowledges this case
does not present such a problem. See post, at 7 (opinion
concurring in part and concurring in judgment) (“Nor is
my claim that the Sixth Amendment was violated in this
case, for petitioner cannot demonstrate that his relatively
low sentence would have been unreasonable if the District
Court had relied on nothing but jury-found or admitted
facts”); see also ante, at 14 (“JUSTICE SCALIA concedes that
the Sixth Amendment concerns he foresees are not pre-
sented by this case. Post, at 7 (concurring in part and
concurring in judgment). And his need to rely on hy-
potheticals to make his point is consistent with our view
that the approach adopted here will not ‘raise a multitude
of constitutional problems.’ Clark v. Martinez, 543 U. S.
371, 380–381 (2005)”). Such a hypothetical case should be
decided if and when it arises. See, e.g., Valley Forge
Christian College v. Americans United for Separation of
Church and State, Inc., 454 U. S. 464, 472 (1982).
As to JUSTICE SOUTER’s opinion, I think he overesti-
mates the “gravitational pull” towards the advisory Guide-
lines that will result from a presumption of reasonable-
 Cite as: 551 U. S. ____ (2007) 7

STEVENS, J., concurring

ness. Post, at 7 (dissenting opinion). Booker’s standard of
review allows—indeed, requires—district judges to con-
sider all of the factors listed in §3553(a) and to apply them
to the individual defendants before them. Appellate
courts must then give deference to the sentencing deci-
sions made by those judges, whether the resulting sen-
tence is inside or outside the advisory Guidelines range,
under traditional abuse-of-discretion principles. As the
Court acknowledges, moreover, presumptively reasonable
does not mean always reasonable; the presumption, of
course, must be genuinely rebuttable. See ante, at 7. I am
not blind to the fact that, as a practical matter, many
federal judges continued to treat the Guidelines as virtu-
ally mandatory after our decision in Booker. See post, at
7, n. 3 (SCALIA, J., concurring in part and concurring in
judgment). One well-respected federal judge has even
written that, “after watching this Court—and the other
Courts of Appeals, whether they have formally adopted
such a presumption or not—affirm hundreds upon hun-
dreds of within-Guidelines sentences, it seems to me that
the rebuttability of the presumption is more theoretical
than real.” United States v. Pruitt, No. 06–3152, 2007
U. S. App. LEXIS 12872, *35–*36 (CA10, June 4, 2007)
(McConnell, J., concurring). Our decision today makes
clear, however, that the rebuttability of the presumption is
real. It should also be clear that appellate courts must
review sentences individually and deferentially whether
they are inside the Guidelines range (and thus potentially
subject to a formal “presumption” of reasonableness) or
outside that range. Given the clarity of our holding, I trust
that those judges who had treated the Guidelines as virtu-
ally mandatory during the post-Booker interregnum will
now recognize that the Guidelines are truly advisory.
Applying this standard, I would affirm the sentence
imposed by the District Court. Although I would have
imposed a lower sentence had I been the District Judge, I
8 RITA v. UNITED STATES

STEVENS, J., concurring

agree that he did not abuse his discretion in making the
particular decision that he did. I also agree with the
Court that his decision is entitled to added respect because
it was consistent with the advice in the Guidelines.
II
That said, I do believe that there was a significant flaw
in the sentencing procedure in this case. The petitioner is
a veteran who received significant recognition for his
service to his country. That aspect of his background is
not taken into consideration in the sentencing guidelines
and was not mentioned by the District Judge in his expla-
nation of his choice of the sentence that defendant re-
ceived. I regard this as a serious omission because I think
the judge’s statement to the defendant, made at the time
of sentencing, is an especially important part of the crimi-
nal process. If the defendant is convinced that justice has
been done in his case—that society has dealt with him
fairly—the likelihood of his successful rehabilitation will
surely be enhanced. Nevertheless, given the importance of
paying appropriate respect to the exercise of a sentencing
judge’s discretion, I join the Court’s opinion and judgment.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–5754
_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 21, 2007]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment.
In United States v. Booker, 543 U. S. 220 (2005), five
Justices of this Court, I among them, held that our previ-
ous decision in Blakely v. Washington, 542 U. S. 296
(2004), applied to sentences imposed under the Federal
Sentencing Guidelines because those Guidelines were
mandatory and binding on judges. See 543 U. S., at 233–
234, 243–244. We thus reaffirmed that “[a]ny fact (other
than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id., at 244. In response to this consti-
tutional holding, a different majority of five Justices held
that the appropriate remedy was to make the Guidelines
nonmandatory in all cases and to review sentences on
appeal only for reasonableness. See id., at 258–265. I
disagreed with the Court’s remedial choice, believing
instead that the proper remedy was to maintain the man-
datory character of the Guidelines and simply to require,
for that small category of cases in which a fact was legally
essential to the sentence imposed, that the fact be proved
to a jury beyond a reasonable doubt or admitted by the
defendant. See id., at 272–291 (STEVENS, J., joined by
SCALIA and SOUTER, JJ., dissenting in part).
2 RITA v. UNITED STATES

Opinion of SCALIA, J.

I do not mean to reopen that debate. As a matter of
statutory stare decisis, I accept Booker’s remedial holding
that district courts are no longer bound by the Guidelines
and that appellate courts should review the sentences
imposed for reasonableness. As should be clear from our
need to decide the case today, however, precisely what
“reasonableness” review entails is not dictated by Booker.
As I lamented then, “[t]he worst feature of the scheme is
that no one knows—and perhaps no one is meant to
know—how advisory Guidelines and ‘unreasonableness’
review will function in practice.” Id., at 311 (SCALIA, J.,
dissenting in part).
Earlier this Term, the Court intensified its silence when
it declined to flesh out what it had in mind in the face of
an argument that the form of reasonableness review had
constitutional implications. In Cunningham v. California,
549 U. S. ___ (2007), JUSTICE ALITO defended the constitu-
tionality of California’s sentencing system in part by
arguing that, even post-Booker, some federal sentences
will be upheld as reasonable only if the judge makes addi-
tional findings of fact beyond those encompassed by the
jury verdict or guilty plea. 549 U. S., at ___, and n. 11
(slip op., at 13, and n. 11) (dissenting opinion). The Cun-
ningham majority’s response, much like the Booker reme-
dial opinion, was cryptic. While the Court did not explain
why JUSTICE ALITO was incorrect, it strongly intimated
that his premise was wrong: that he had erroneously
“anticipate[d]” how “reasonableness review operates in
practice.” Cunningham, 549 U. S., at ___, n. 15 (slip op.,
at 20, n. 15). Because that question is squarely presented
in this case that was then pending, the Court found it
“neither necessary nor proper . . . to join issue with
JUSTICE ALITO on this matter,” suggesting that all would
be revealed in the opinion we issue today. See id., at ___,
n. 13 (slip op., at 15, n. 13).
Today has arrived, and the Court has broken its prom-
 Cite as: 551 U. S. ____ (2007) 3

Opinion of SCALIA, J.

ise. Nothing in the Court’s opinion explains why, under
the advisory Guidelines scheme, judge-found facts are
never legally necessary to justify the sentence. By this I
mean the Court has failed to establish that every sentence
which will be imposed under the advisory Guidelines
scheme could equally have been imposed had the judge
relied upon no facts other than those found by the jury or
admitted by the defendant. In fact, the Court implicitly,
but quite plainly, acknowledges that this will not be the
case, by treating as a permissible post-Booker claim peti-
tioner’s challenge of his within-Guidelines sentence as
substantively excessive. See ante, at Part IV. Under the
scheme promulgated today, some sentences reversed as
excessive will be legally authorized in later cases only
because additional judge-found facts are present; and, as
JUSTICE ALITO argued in Cunningham, some lengthy
sentences will be affirmed (i.e., held lawful) only because
of the presence of aggravating facts, not found by the jury,
that distinguish the case from the mine-run. The Court
does not even attempt to explain how this is consistent
with the Sixth Amendment.
No explanation is given because no explanation is possi-
ble. The Court has reintroduced the constitutional defect
that Booker purported to eliminate. I cannot acquiesce in
this course. If a sentencing system is permissible in which
some sentences cannot lawfully be imposed by a judge
unless the judge finds certain facts by a preponderance of
the evidence, then we should have left in place the com-
pulsory Guidelines that Congress enacted, instead of
imposing this jerry-rigged scheme of our own. In order to
avoid the possibility of a Sixth Amendment violation,
which was the object of the Booker remedy, district courts
must be able, without finding any facts not embraced in
the jury verdict or guilty plea, to sentence to the maximum
of the statutory range. Because, therefore, appellate
courts cannot reverse within-range sentences for being too
4 RITA v. UNITED STATES

Opinion of SCALIA, J.

high; and because no one would contend that Congress
intended that sentences be reviewed only for being too low;
I would hold that reasonableness review cannot contain a
substantive component at all. I believe, however, that
appellate courts can nevertheless secure some amount of
sentencing uniformity through the procedural reasonable-
ness review made possible by the Booker remedial opinion.
I
A
The Sixth Amendment requires that “[a]ny fact (other
than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 543 U. S., at 244. Two hy-
potheticals will suffice to reveal why the notion of excessive
sentences within the statutory range, and the ability of
appellate courts to reverse such sentences, inexorably
produces, in violation of the Sixth Amendment, sentences
whose legality is premised on a judge’s finding some fact (or
combination of facts) by a preponderance of the evidence.
First, consider two brothers with similar backgrounds
and criminal histories who are convicted by a jury of re-
spectively robbing two banks of an equal amount of
money. Next assume that the district judge finds that one
brother, fueled by racial animus, had targeted the first
bank because it was owned and operated by minorities,
whereas the other brother had selected the second bank
simply because its location enabled a quick getaway.
Further assume that the district judge imposes the statu-
tory maximum upon both brothers, basing those sentences
primarily upon his perception that bank robbery should be
punished much more severely than the Guidelines base
level advises, but explicitly noting that the racially biased
decisionmaking of the first brother further justified his
 Cite as: 551 U. S. ____ (2007) 5

Opinion of SCALIA, J.

sentence. Now imagine that the appellate court reverses
as excessive only the sentence of the nonracist brother.
Given the dual holdings of the appellate court, the racist
has a valid Sixth Amendment claim that his sentence was
reasonable (and hence lawful) only because of the judicial
finding of his motive in selecting his victim.1
Second, consider the common case in which the district
court imposes a sentence within an advisory Guidelines
range that has been substantially enhanced by certain
judge-found facts. For example, the base offense level for
robbery under the Guidelines is 20, United States Sen-
tencing Commission, Guidelines Manual §2B3.1(a) (Nov.
2006), which, if the defendant has a criminal history of I,
corresponds to an advisory range of 33–41 months, id.,
ch. 5, pt. A, Sentencing Table. If, however, a judge finds
that a firearm was discharged, that a victim incurred
serious bodily injury, and that more than $5 million was
stolen, then the base level jumps by 18, §§2B3.1(b)(2), (3),
(7), producing an advisory range of 235–293 months, id.,
ch. 5, pt. A, Sentencing Table. When a judge finds all of
those facts to be true and then imposes a within-
Guidelines sentence of 293 months, those judge-found
facts, or some combination of them, are not merely facts
that the judge finds relevant in exercising his discretion;
they are the legally essential predicate for his imposition
of the 293-month sentence. His failure to find them would
render the 293-month sentence unlawful. That is evident
because, were the district judge explicitly to find none of
those facts true and nevertheless to impose a 293-month
sentence (simply because he thinks robbery merits seven
times the sentence that the Guidelines provide) the sen-

——————
1 Of course, it may be that some fact other than racial animus would
also have sufficed to sustain the increased sentence. But it is undeni-
able that in the case at hand the judicial finding of racial animus filled
that role. See Blakely v. Washington, 542 U. S. 296, 305 (2004).
6 RITA v. UNITED STATES

Opinion of SCALIA, J.

tence would surely be reversed as unreasonably excessive.
These hypotheticals are stylized ways of illustrating the
basic problem with a system in which district courts lack
full discretion to sentence within the statutory range.
Under such a system, for every given crime there is some
maximum sentence that will be upheld as reasonable
based only on the facts found by the jury or admitted by
the defendant. Every sentence higher than that is legally
authorized only by some judge-found fact, in violation of
the Sixth Amendment. Appellate courts’ excessiveness
review will explicitly or implicitly accept those judge-found
facts as justifying sentences that would otherwise be
unlawful. The only difference between this system and
the pre-Booker mandatory Guidelines is that the maxi-
mum sentence based on the jury verdict or guilty plea was
specified under the latter but must be established by
appellate courts, in case-by-case fashion, under the for-
mer. This is, if anything, an additional constitutional
disease, not a constitutional cure.
To be clear, I am not suggesting that the Sixth Amend-
ment prohibits judges from ever finding any facts. We
have repeatedly affirmed the proposition that judges can
find facts that help guide their discretion within the sen-
tencing range that is authorized by the facts found by the
jury or admitted by the defendant. See, e.g., Booker, su-
pra, at 233; Apprendi v. New Jersey, 530 U. S. 466, 481
(2000). But there is a fundamental difference, one under-
pinning our entire Apprendi jurisprudence, between facts
that must be found in order for a sentence to be lawful,
and facts that individual judges choose to make relevant to
the exercise of their discretion. The former, but not the
latter, must be found by the jury beyond a reasonable
doubt in order “to give intelligible content to the right of
jury trial.” Blakely, 542 U. S., at 305.2
——————
2 For similar reasons, I recognize that the Sixth Amendment problem
 Cite as: 551 U. S. ____ (2007) 7

Opinion of SCALIA, J.

I am also not contending that there is a Sixth Amend-
ment problem with the Court’s affirmation of a presump-
tion of reasonableness for within-Guidelines sentences. I
agree with the Court that such a presumption never itself
makes judge-found facts legally essential to the sentence
imposed, since it has no direct relevance to whether the
sentence would have been unreasonable in the absence of
any judge-found facts. See ante, at 12–15.3 Nor is my
claim that the Sixth Amendment was violated in this case,
for petitioner cannot demonstrate that his relatively low
sentence would have been unreasonable if the District
Court had relied on nothing but jury-found or admitted
facts.
Rather, my position is that there will inevitably be some
——————
with reasonableness review is created only by the lack of district court
discretion to impose high sentences, since eliminating discretion to
impose low sentences is the equivalent of judicially creating mandatory
minimums, which are not a concern of the Sixth Amendment. See
Harris v. United States, 536 U. S. 545, 568–569 (2002). But since
reasonableness review should not function as a one-way ratchet, United
States v. Booker, 543 U. S. 220, 257–258, 266 (2005), we must forswear
the notion that sentences can be too low in light of the need to abandon
the concept that sentences can be too high.
3 For this reason, I do not join JUSTICE SOUTER’s dissent. He wishes to

give “district courts [assurance] that the entire sentencing range set by
statute is available to them.” Post, at 8. That is a proper goal—indeed,
an essential one to prevent the Booker remedy from effectively over-
turning Apprendi and Blakely. But eliminating the presumption of
reasonableness will not achieve it. In those Circuits that already
decline to employ the presumption, a within-Guidelines sentence has
never been reversed as substantively excessive, Brief for New York
Council of Defense Lawyers as Amicus Curiae 5, refuting the belief that
mere elimination of the presumption will destroy the “gravitational
pull,” post, at 7 (SOUTER, J., dissenting), to stay safely within the
Guidelines. The only way to assure district courts that they can devi-
ate from the advisory Guidelines, and to ensure that judge-found facts
are never legally essential to the sentence, is to prohibit appellate
courts from reviewing the substantive sentencing choices made by
district courts.
8 RITA v. UNITED STATES

Opinion of SCALIA, J.

constitutional violations under a system of substantive
reasonableness review, because there will be some sen-
tences that will be upheld as reasonable only because of
the existence of judge-found facts. Booker itself reveals
why that reality dooms the construct of reasonableness
review established and applied by today’s opinion. Booker
made two things quite plain. First, reasonableness is the
standard of review implicitly contained within the Sen-
tencing Reform Act of 1984 (SRA). 543 U. S., at 260–261.
Second, Congress wanted a uniform system of sentencing
review, rather than different schemes depending on
whether there were Sixth Amendment problems in par-
ticular cases. Id., at 265–267. Thus, if the contours of
reasonableness review must be narrowed in some cases
because of constitutional concerns, then they must be
narrowed in all cases in light of Congress’s desire for a
uniform standard of review. The Justices composing
today’s Court were in total agreement with this principle
of statutory interpretation the day Booker was decided:
“[W]hen deciding which of two plausible statutory con-
structions to adopt, a court must consider the neces-
sary consequences of its choice. If one of them would
raise a multitude of constitutional problems, the other
should prevail—whether or not those constitutional
problems pertain to the particular litigant before the
Court.” Clark v. Martinez, 543 U. S. 371, 380–381
(2005) (opinion for the Court by SCALIA, J., joined by,
inter alios, STEVENS, KENNEDY, GINSBURG, and
BREYER, JJ.).
Yet they now adopt substantive reasonableness review
without offering any rebuttal to my charge of patent con-
stitutional flaw inherent in such review. The one comfort
to be found in the Court’s opinion—though it does not
excuse the failure to apply Martinez’s interpretive princi-
ple—is that it does not rule out as-applied Sixth Amend-
 Cite as: 551 U. S. ____ (2007) 9

Opinion of SCALIA, J.

ment challenges to sentences that would not have been
upheld as reasonable on the facts encompassed by the jury
verdict or guilty plea. Ante, at 14–15; ante, at 6 (STEVENS,
J., joined by GINSBURG, J., concurring).4
B
Had the Court bothered to frame objections to the con-
stitutional analysis undertaken above, there are four
conceivable candidates.
1
The most simplistic objection is that the Sixth Amend-
ment is not violated because the judge-found facts are
made legally necessary by the decision of appellate courts
rather than the decision of Congress. This rebuttal errs
both in premise and in conclusion.
The premise is wrong because, according to the remedial
majority in Booker, the facts that excessiveness review
renders legally essential are made such by Congress.
Reasonableness is the standard of review implicitly con-
tained within 18 U. S. C. §3742 (2000 ed. and Supp. IV).
See Booker, supra, at 260–261. But the Sixth Amendment
would be violated even if appellate courts really were
exercising some type of common-law power to prescribe
the facts legally necessary to support specific sentences.
——————
4 The Court suggests that my reliance on hypotheticals indicates that

its interpretation of reasonableness will not create a multitude of
constitutional problems. Ante, at 14; see also ante, at 6 (STEVENS, J.,
concurring). Setting aside the question whether the volume of constitu-
tional violations has any relevance to the application of Martinez’s
interpretive principle, the Court is wrong to think that the constitu-
tional problem today’s opinion ignores is hypothetical, merely because I
have used hypotheticals to describe it. It is all too real that advisory
Guidelines sentences routinely change months and years of imprison-
ment to decades and centuries on the basis of judge-found facts—as
Booker itself recognized, see 543 U. S., at 236–237 (citing, inter alia, a
case in which a defendant’s sentence increased from 57 months to 155
years).
10 RITA v. UNITED STATES

Opinion of SCALIA, J.

Neither Apprendi nor any of its progeny suggests that
violation of the Sixth Amendment depends upon what
branch of government has made the prescription. To the
contrary, Booker flatly rejected the argument that the
mandatory Guidelines were constitutional because it was
the Sentencing Commission rather than Congress that
specified the facts essential to punishment. See 543 U. S.,
at 237–239. And for good reason. The Sixth Amendment
is “a reservation of jury power.” Blakely, 542 U. S., at 308.
It makes no difference whether it is a legislature, a Sen-
tencing Commission, or an appellate court that usurps the
jury’s prerogative. Were it otherwise, this Court could
prescribe that the only reasonable sentences are those
consistent with the same mandatory Guidelines that
Booker invalidated. And the California Supreme Court
could effectively reverse our decision in Cunningham
simply by setting aside as unreasonable any trial-court
sentence that does not conform to pre-Cunningham Cali-
fornia law.
2
The next objection minimizes the extent to which exces-
siveness review makes judge-found facts legally essential
to punishment. If appellate courts will uphold, based only
on the facts found by the jury, a district court’s decision to
impose all but the lengthiest sentences, then the number
of sentences that are legally dependent on judge-found
facts will be quite small. Thus, the argument goes, there
is no reason to prohibit substantive reasonableness review
altogether: Absent a claim that such review creates a
constitutional problem in a given case, why prohibit it? I
have already explained why this line of defense is incon-
sistent with established principles of statutory interpreta-
tion. See supra, at 7–9. But even on its own terms, the
defense is inconsistent with Booker because reasonable-
ness review is an improper and inadequate remedial
 Cite as: 551 U. S. ____ (2007) 11

Opinion of SCALIA, J.

scheme unless it ensures that judge-found facts are never
legally necessary to justify the sentence imposed under the
advisory Guidelines.
The mandatory Guidelines system that was invalidated
in Booker had the same attribute of producing unconstitu-
tional results in only a small proportion of cases. Because
of guilty pleas and Guidelines ranges that did not depend
on judge-found facts, the overwhelming majority of sen-
tences imposed under the pre-Booker federal system were
perfectly in accord with the Sixth Amendment. See
Booker, 543 U. S., at 248; id., at 275–277 (STEVENS, J.,
dissenting in part). Booker nevertheless excised key
statutory provisions governing federal sentencing, in order
to eliminate constitutional violations entirely. If our con-
jured-up system does not accomplish that goal, then by
what right have we supplanted the congressionally en-
acted mandatory Guidelines?
If it is true that some sentences under today’s Court-
prescribed system will still violate the Sixth Amendment,
nonetheless allowing the system to go forward will pro-
duce chaos. Most cases do not resemble my stylized hy-
potheticals, and ordinarily defendants and judges will be
unable to figure out, based on a comparison of the facts in
their case with the facts of all of the previously decided
appellate cases, whether the sentence imposed would have
been upheld as reasonable based only on the facts support-
ing the jury verdict or guilty plea. That will not stop
defendants from making the argument, however, and the
Court certainly has not foreclosed them from trying. See
supra, at 8–9, and n. 4. Judges will have in theory two
options: create complicated charts and databases, based on
appellate precedents, to ascertain what facts are legally
essential to justify what sentences; or turn a deaf ear to
these claims, though knowing full well that some of them
12 RITA v. UNITED STATES

Opinion of SCALIA, J.

are justified. I bet on the latter.5 Things were better
under the mandatory Guidelines system, where every
judge could readily identify when the Sixth Amendment
was being violated, and could rule accordingly.
3
Proponents of substantive reasonableness review could
next argue that actual sentencing involves the considera-
tion of dozens of different facts in order to make an indi-
vidualized determination about each defendant. In the
real world, they would contend, it is difficult, if not impos-
sible, to determine whether any given fact was legally
essential to the punishment imposed. But identifying the
particular fatal fact is not necessary to identifying a con-
stitutional violation. In the second hypothetical given
above, for example, it is not possible to say which single
fact, or which combination of facts, sufficed to bring the
sentence within the bounds of the “reasonable.” But it is
possible to say (indeed, it must be said) that some judge-
found fact or combination of facts had that effect—and
that suffices to establish a Sixth Amendment violation.
“Whether the judge’s authority to impose an enhanced
sentence depends on finding a specified fact . . ., one of
several specified facts . . ., or any aggravating fact . . .,
it remains the case that the jury’s verdict alone does
not authorize the sentence. The judge acquires that
authority only upon finding some additional fact.”
Blakely, supra, at 305.
——————
5 Perhaps I am too cynical. At least one conscientious District Judge
has decided to shoulder the burden of ascertaining what the maximum
reasonable sentence is in each case based only on the verdict and
appellate precedent, correctly concluding that this is the only way to
eliminate Sixth Amendment problems after Cunningham if Booker
mandates substantive reasonableness review. See United States v.
Griffin, No. 05–10175–WGY, 2007 WL 1620526, *13–*14 (D. Mass.,
June 6, 2007) (Young, D. J.) (Sentencing Memorandum).
 Cite as: 551 U. S. ____ (2007) 13

Opinion of SCALIA, J.

4
The last conceivable defense of the Guidelines-light
would be to wrap them in the mantle of history and
tradition.
“[W]hen a practice not expressly prohibited by the text
of the Bill of Rights bears the endorsement of a long
tradition of open, widespread, and unchallenged use
that dates back to the beginning of the Republic, we
have no proper basis for striking it down. Such a ven-
erable and accepted tradition is not to be laid on the
examining table and scrutinized for its conformity to
some abstract principle of [constitutional] adjudica-
tion devised by this Court. To the contrary, such tra-
ditions are themselves the stuff out of which the
Court’s principles are to be formed.” Rutan v. Repub-
lican Party of Ill., 497 U. S. 62, 95–96 (1990) (SCALIA,
J., dissenting) (footnote omitted).
This consideration has no application here. In the federal
system, prior to the SRA, substantive appellate review of a
district court’s sentencing discretion essentially did not
exist. See, e.g., Dorszynski v. United States, 418 U. S. 424,
431 (1974) (noting “the general proposition that once it is
determined that a sentence is within the limitations set
forth in the statute under which it is imposed, appellate
review is at an end”); id., at 443 (“[W]ell-established doc-
trine bars review of the exercise of sentencing discretion”).
As for state appellate review of sentences, as late as 1962,
at least 39 States did not permit appellate courts to mod-
ify sentences imposed within the statutory limits. See
Appellate Review of Sentences, A Symposium at the Judi-
cial Conference of the United States Court of Appeals for
the Second Circuit, 32 F. R. D. 249, 260 (1962). It would
be an exaggeration to say that history reflects an estab-
lished understanding that appellate review of excessive
sentences conflicts with the Sixth Amendment. But it
14 RITA v. UNITED STATES

Opinion of SCALIA, J.

would also be an exaggeration to say that the historical
pedigree of substantive appellate review of sentencing is
so strong and clear as to overcome the basic principle
underlying the jury-trial right applied by this Court in
Apprendi, Blakely, Booker, and Cunningham.
C
A final defense of substantive reasonableness review
would be to invoke the intent of Congress or of the Booker
remedial opinion. As for congressional intent: Of course
Congress intended that judge-found facts be legally essen-
tial to the punishment imposed; that was the whole reason
the mandatory Guidelines violated the Sixth Amendment.
If we are now to indulge a newfound respect for unconsti-
tutional congressional intent, we should reimpose the
mandatory Guidelines system. The quasi-Guidelines
system the Court creates today manages to contravene
both congressional intent and the Sixth Amendment.
As for the “intent” of the Booker remedial opinion: That
opinion purported to be divining congressional intent in
light of what the Sixth Amendment compelled. See 543
U. S., at 263–265. Absent some explanation of why sub-
stantive reasonableness review does not cause judge-found
facts to justify greater punishment than the jury’s verdict
or the defendant’s guilty plea would sustain, I fail to un-
derstand how such review could possibly have been in-
tended by all five Justices who composed the Booker re-
medial majority. After all, at least one of them did not
intend “to override Blakely, and to render academic the
entire first part of Booker itself,” and has confirmed that
“[t]here would have been no majority in Booker for the
revision of Blakely essayed in [JUSTICE ALITO’s Cunning-
ham] dissent.” Cunningham, 549 U. S., at ___, n. 15 (slip
op., at 20, n. 15) (opinion for the Court by GINSBURG, J.).
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Opinion of SCALIA, J.

II
Abandoning substantive reasonableness review does not
require a return to the pre-SRA regime that the Booker
remedial opinion sought to avoid. See 543 U. S., at 263–
265. As I said at the outset, I believe it is possible to give
some effect to the Booker remedial opinion and the pur-
poses that it sought to serve while still avoiding the con-
stitutional defect identified in the Booker merits opinion.
Specifically, I would limit reasonableness review to the
sentencing procedures mandated by statute.
A
A central feature of the Booker remedial opinion was its
conclusion that the SRA was not completely inseverable.
See id., at 258–265. As a result, the Sentencing Commis-
sion “remains in place, writing Guidelines, collecting
information about actual district court sentencing deci-
sions, undertaking research, and revising the Guidelines
accordingly.” Id., at 264. Likewise, sentencing courts
remain obligated to consider the various factors delineated
in 18 U. S. C. §3553(a) (2000 ed., Supp. IV), including the
now-advisory Guidelines range. 543 U. S., at 259–260.
And they are still instructed by that subsection to “impose
a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of
[that] subsection.” Significantly, §3553(c) (2000 ed. and
Supp. IV) continues to require that district courts give
reasons for their sentencing decisions, a requirement the
requisite detail of which depends on whether the sentence
is: (1) within the advisory Guidelines range; (2) within an
advisory Guidelines range that spans more than 24
months; or (3) outside the advisory Guidelines range.
These explanations, in turn, help the Commission revise
the advisory Guidelines to reflect actual sentencing prac-
tices consistent with the statutory goals. See Booker,
supra, at 264 (citing 28 U. S. C. §994 (2000 ed. and Supp.
16 RITA v. UNITED STATES

Opinion of SCALIA, J.

IV)).
Booker’s retention of these statutory procedural provi-
sions furthered the congressional purpose of “iron[ing] out
sentencing differences,” 543 U. S., at 263, and “avoid[ing]
excessive sentencing disparities,” id., at 264. It is impor-
tant that appellate courts police their observance. Booker
excised the provision of the SRA containing the standards
for appellate review, see id., at 260 (invalidating 18
U. S. C. §3742(e) (2000 ed. and Supp. IV)), but the reme-
dial majority’s creation of reasonableness review gave
appellate courts the necessary means to reverse a district
court that: appears not to have considered §3553(a); con-
siders impermissible factors; selects a sentence based on
clearly erroneous facts; or does not comply with §3553(c)’s
requirement for a statement of reasons.6 In addition to its
direct effect on sentencing uniformity, this procedural
review will indirectly produce, over time, reduction of
sentencing disparities. By ensuring that district courts
give reasons for their sentences, and more specific reasons
when they decline to follow the advisory Guidelines range,
see §3553(c)(2) (2000 ed., Supp. IV), appellate courts will
enable the Sentencing Commission to perform its function
of revising the Guidelines to reflect the desirable sentenc-
ing practices of the district courts. See Booker, supra, at
264 (citing 28 U. S. C. §994 (2000 ed. and Supp. IV)). And
as that occurs, district courts will have less reason to
depart from the Commission’s recommendations, leading

——————
6 “Substance” and “procedure” are admittedly chameleon-like terms.
See Sun Oil Co. v. Wortman, 486 U. S. 717, 726–727 (1988). As the text
indicates, my use of the term “procedure” here includes the limiting of
sentencing factors to permissible ones—as opposed to using permissible
factors but reaching a result that is “substantively” wrong. I therefore
disagree with JUSTICE STEVENS that a district court which discriminates
against Yankees fans is acting in a procedurally “impeccable” way.
Ante, at 6 (concurring opinion).
 Cite as: 551 U. S. ____ (2007) 17

Opinion of SCALIA, J.

to more sentencing uniformity.7
One possible objection to procedural review that the
Booker remedial opinion appears not to have considered is
18 U. S. C. §3742(f) (2000 ed., Supp. IV), which limits
appellate courts to reversing sentences that are imposed
“in violation of law” or “as a result of an incorrect applica-
tion of the sentencing guidelines,” §3742(f)(1), or that fall
in certain categories and are either “too high” or “too low,”
§3742(f)(2).8 But, as I noted in Booker, §3742(e) and
§3742(f) are inextricably intertwined: Having excised
§3742(e)’s provisions setting forth the standards for appel-
late review, it is nonsensical to continue to apply §3742(f)’s
provisions governing the “Decision and Disposition” of
appeals, which clearly track those now-excised standards.
See 543 U. S., at 306–307 (SCALIA, J., dissenting in part).
I would hold that §3742(f) is “incapable of functioning
independently” of the provisions excised in Booker, and is
thus inseverable from them. See Alaska Airlines, Inc. v.

——————
7 Courts must resist, however, the temptation to make procedural

review more stringent because substantive review is off the table. The
judicial role when conducting severability analysis is limited to deter-
mining whether the balance of a statute that contains an unconstitu-
tional provision is capable “of functioning independently.” Alaska
Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Courts have no power
to add provisions that might be desirable now that certain provisions
have been excised. Thus, when engaging in reasonableness review to
determine whether the district court has complied with the various
procedures in §3553, an appellate court cannot subject the district court
to any greater requirements than existed pre-Booker.
8 I say “possible” because one could claim that the failure to comply

with 18 U. S. C. §3553’s procedural requirements results in a sentence
imposed in violation of law, and thereby covered by §3742(f)(1). But
§3742(f)(1)’s applicability to such procedural errors is called into
question by §3742(f)(2), which specifically addresses sentences where
“the district court failed to provide the required statement of reasons
[mandated by §3553(c)(2)].” For the reasons specified in the text,
however, I see no need to grapple, post-Booker, with the proper inter-
pretation of §3742(f).
18 RITA v. UNITED STATES

Opinion of SCALIA, J.

Brock, 480 U. S. 678, 684 (1987); 2 N. Singer, Sutherland
Statutes and Statutory Construction §44:4, p. 576 (6th ed.
2001) (“Even where part of an act is independent and
valid, other parts which are not themselves substantively
invalid but have no separate function to perform inde-
pendent of the invalid portions of the act are also held
invalid”).
B
Applying procedural review in this case does not require
much further discussion on my part. I join Part III of the
Court’s opinion. See ante, at 16–20.
* * *
The Court’s decision today leaves unexplained why the
mandatory Guidelines were unconstitutional, but the
Court-created substantive-review system that contains the
same potential for Sixth Amendment violation is not. It is
irresponsible to leave this patent inconsistency hanging in
the air, threatening in the future yet another major revi-
sion of Guidelines practices to which the district courts
and courts of appeals will have to adjust. Procedural
review would lay the matter to rest, comporting with both
parts of the Booker opinion and achieving the maximum
degree of sentencing uniformity on the basis of judge-
found facts that the Constitution permits.
 Cite as: 551 U. S. ____ (2007) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–5754
_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 21, 2007]

JUSTICE SOUTER, dissenting.
Applying the Sixth Amendment to current sentencing
law has gotten complicated, and someone coming cold to
this case might wonder how we reached this point. A very
general overview of the course of decisions over the past
eight years may help to put today’s holding in perspective.
Members of a criminal jury are guaranteed to be impar-
tial residents of the State and district of the crime, but the
Sixth Amendment right to trial by jury otherwise relies on
history for details, and the practical instincts of judges
and legislators for implementation in the courts. Litiga-
tion has, for example, worked through issues of size, see
Ballew v. Georgia, 435 U. S. 223 (1978) (prohibiting five-
person state juries but allowing juries of six), and unanim-
ity, see Apodaca v. Oregon, 406 U. S. 404 (1972) (allowing
nonunanimous juries in state criminal trials); Burch v.
Louisiana, 441 U. S. 130 (1979) (prohibiting nonunani-
mous six-person juries). Such decisions go to what Wil-
liam James would have called the “cash-value” of the
Constitution’s guarantee. See W. James, Pragmatism: A
New Name for Some Old Ways of Thinking 200 (1st ed.
1907).
One additional issue of both detail and implementation
is the line between judge and jury in determining facts,
and in particular the legitimate extent of factfinding by a
judge when sentencing a defendant after a guilty plea or a
2 RITA v. UNITED STATES

SOUTER, J., dissenting

jury’s verdict of guilty. Since the very inception of judicial
discretion in determining a sentence, judges have acted on
what they learn in the course of a trial (and later what
they gather from a presentence report or other evidence at
time of sentencing), including details a trial jury may not
have found to be true when it returned the guilty verdict
or answered a special question. But historically, also, the
customary judicial use of these extraverdict facts has been
in deciding on a sentence within a range set in advance by
the statute defining the crime in question. See Williams v.
New York, 337 U. S. 241, 246–247 (1949). Thus, tradi-
tionally when a judge imposed a sentence at some point in
the range, say, of 0-to-5 years specified by statute for some
offense, every fact necessary to go as high as five years
had been found by the jury (or admitted), even though the
jury had not made particular or implicit findings of the
facts the judge might consider in exercising discretion to
set the sentence higher or lower within the 5-year range.
It was against this background, in Jones v. United
States, 526 U. S. 227 (1999), that we called attention to a
serious threat to the practical value of a criminal defen-
dant’s jury right. Jones had been prosecuted under a
statute that exemplified a growing practice of providing a
definition and penalty for some basic crime subject to the
right of jury trial, but then identifying variants carrying
higher ranges of penalties depending on facts that argua-
bly might be found by a judge sitting alone. Thus, Jones
was convicted solely of carjacking, but if the further fact of
causing “ ‘serious bodily injury’ ” was shown, the maximum
penalty jumped from 15 years to 25. Id., at 230 (quoting
18 U. S. C. §2119 (1988 ed., Supp. V)). The Government’s
position was that the extra fact of serious bodily injury
raising the penalty range required no jury finding because
it was only a condition for imposing an enhanced sentence,
up to a judge, not an element of a more serious crime,
subject to the right to a jury’s determination. See Jones,
 Cite as: 551 U. S. ____ (2007) 3

SOUTER, J., dissenting

526 U. S., at 233.
It was an unsettling argument, because in prosecutions
under these statutory schemes the most serious issue in
the case might well be not guilt or innocence of the basic
offense, but liability to the substantially enhanced pen-
alty. If, for example, the judge found that Jones had
caused not just serious bodily injury, but death, such
extraverdict factfinding could have made the difference
between 15 years and life imprisonment. Id., at 230 (quot-
ing §2119 (1988 ed., Supp. V)). In a case like that, giving
judges the exclusive power to find the facts necessary to
sentence in the higher range would make the jury a mere
gatekeeper to the more important trial before a judge
alone. Id., at 243–244. The Sixth Amendment does not, of
course, speak expressly to such a scheme, but that is not a
sufficient reason to give it constitutional approval. For if
judicial factfinding necessary for an enhanced sentencing
range were held to be adequate in the face of a defendant’s
objection, a defendant’s right to have a jury standing
between himself and the power of the government to
curtail his liberty would take on a previously unsuspected
modesty.
Jones accordingly treated this practice as suspect
enough to call for applying the doctrine of constitutional
avoidance when the Court interpreted the statute in ques-
tion. What the Government called a mere condition for
imposing a sentencing enhancement was treated as an
element of a more serious offense and made subject to a
jury’s factfinding. This interpretation obviated the consti-
tutional decision whether subjecting an unwilling defen-
dant to a more onerous range of sentence on facts found
solely by a judge would violate the Sixth Amendment.
The issue did not go away with Jones, and the constitu-
tional challenge was soon presented inescapably, in Ap-
prendi v. New Jersey, 530 U. S. 466 (2000). We held that
exposing a defendant to an increased penalty beyond the
4 RITA v. UNITED STATES

SOUTER, J., dissenting

range for a basic crime, based on facts determined exclu-
sively by a judge, violated the Sixth Amendment, in the
absence of a jury waiver; a defendant could not be sub-
jected to a penalty more serious than one authorized by
the facts found by the jury or admitted by the defendant.
Id., at 490.1 A judge could constitutionally determine facts
for exercising discretion in sentencing up to that point, but
a fact that raised the range of possible penalties func-
tioned like an element of a more serious offense, even if a
statute ostensibly tied that fact to the sentence alone.
Hence, in the absence of waiver, a sentence in that weight-
ier range could be imposed by a judge only if the enhanc-
ing fact was found beyond a reasonable doubt by the trial
jury. Ibid. In placing disputed factfinding off judicial
limits when, but only when, its effect would be to raise the
range of possible sentences, we made a practical judgment
that maintained the historical judicial role in finding facts
relevant to sentencing within the range set by a jury’s
verdict, but we recognized that the jury right would be
trivialized beyond recognition if that traditional practice
could be extended to the point that a judge alone (over
objection) could find a fact necessary to raise the upper
limit of a sentencing range.
From the moment Apprendi drew that line, however, its
holding carried apparent implications for the regime of
Guidelines sentencing adopted in 1984, see Sentencing
Reform Act of 1984, 98 Stat. 1987, 18 U. S. C. §3551 et seq.
(2000 ed. and Supp. IV), 28 U. S. C. §991 et seq. (2000 ed.
and Supp. IV). The general object of Guidelines sentenc-
ing was the eminently laudable one of promoting substan-
tial consistency in exercising judicial discretion to sen-
——————
1 We recognized a single exception to this rule, permitting reliance on

the fact of a prior conviction without a jury determination that the
defendant had previously been convicted. See Apprendi, 530 U. S., at
489–490; see also Almendarez-Torres v. United States, 523 U. S. 224
(1998).
 Cite as: 551 U. S. ____ (2007) 5

SOUTER, J., dissenting

tence within the range set by statute for a given crime.
Thus, at the elementary level, the Guidelines law limits
the sentence that a judge may impose even within the
sentencing range provided by the statute creating a par-
ticular offense. In effect, it divides a basic sentencing
range into subranges and assigns an offender to a
subrange based on the particular facts of the case and the
offender’s criminal history. A judge may depart from the
assigned subrange only if the case presents a circumstance
“not adequately taken into consideration by the Sentenc-
ing Commission in formulating the guidelines.” 18
U. S. C. §3553(b)(1) (2000 ed., Supp. IV). It follows that a
judge must find facts beyond those necessary for the jury’s
guilty verdict to sentence above (or below, for that matter)
the subrange designated for an offender with a compara-
ble criminal history whose case presents no relevant facts
beyond the formal elements of the crime itself. The result
is a hybrid sentencing practice. One could describe it by
emphasizing that the judge’s factfinding could never in-
crease the sentence beyond the range set by the law defin-
ing the crime, or one could stress that a principal motiva-
tion for Guidelines sentencing is eliminating some
traditional judicial discretion by forbidding a judge to
impose a high sentence except on the basis of some fact
beyond those necessary for a guilty verdict (and thus
subject to the right to a jury’s determination).
In Blakely v. Washington, 542 U. S. 296 (2004), consid-
ering a state sentencing system similar to the federal
scheme, we decided that the latter way of looking at it
made more sense, if Apprendi was going to mean some-
thing in preserving the historical significance of the jury.
See 542 U. S., at 305–306. We held that the additional
factfinding necessary for a judge to sentence within a high
subrange was comparable to the finding of additional fact
required for a judge to impose an enhanced sentence
under the law considered in Apprendi. If Blakely had
6 RITA v. UNITED STATES

SOUTER, J., dissenting

come out the other way, the significance of Apprendi itself
would be in jeopardy: a legislature would be free to bypass
Apprendi by providing an abnormally spacious sentencing
range for any basic crime (theoretically exposing a defen-
dant to the highest sentence just by the jury’s guilty ver-
dict), then leaving it to a judge to make supplementary
findings not only appropriate but necessary for a sentence
in a subrange at the high end. That would spell the end of
Apprendi and diminish the real significance of jury protec-
tion that Apprendi had shored up.
In United States v. Booker, 543 U. S. 220 (2005), a ma-
jority of the Court applied Blakely’s reasoning and held
that the Federal Guidelines, too, subjected defendants to
unconstitutional sentences in upper subranges, absent a
jury finding or waiver. So far, so good for the Sixth
Amendment, but there was the further issue of remedy,
and at that step consistency began to falter. If statutory
Guidelines were to survive, there were two serious alter-
natives. One was already in place in courts with the
foresight to apply Apprendi to the Guidelines: require any
additional facts necessary for a possible high subrange
sentence to be charged and submitted to the jury. True,
the Government would have to think ahead (and could not
charge relevant facts that emerged unexpectedly at trial).
But the mandatory character of the Guidelines would be
preserved, the goal of consistency would continue to be
served, and the practical value of the jury right would not
face erosion.
The second remedial alternative was a declaration by
the Court that the Guidelines were not mandatory but
discretionary, so that finding extraverdict facts was not
strictly necessary for sentencing in a high subrange under
the Guidelines. On this alternative, a judge who found a
subsidiary fact specified as a condition for a high subrange
sentence might decide to impose a low sentence (inde-
pendently of the Guidelines’ own provisions for downward
 Cite as: 551 U. S. ____ (2007) 7

SOUTER, J., dissenting

departure), and a judge who found no such fact might
sentence within the high subrange for other reasons that
seemed sufficient. If the Guidelines were not mandatory,
the subsidiary fact merely provided one reasoned basis for
a traditional exercise of discretion to sentence at the high
end of the sentencing range provided by the statute defin-
ing the crime.
But that second alternative could not be so simple: it
raised yet further issues, and the reconfigured majority of
the Court that in fact adopted it, see 543 U. S., at 244,
guaranteed that we would have the case now before us. If
district judges treated the now-discretionary Guidelines
simply as worthy of consideration but open to rejection in
any given case, the Booker remedy would threaten a re-
turn to the old sentencing regime and would presumably
produce the apparent disuniformity that convinced Con-
gress to adopt Guidelines sentencing in the first place.
But if sentencing judges attributed substantial gravita-
tional pull to the now-discretionary Guidelines, if they
treated the Guidelines result as persuasive or presump-
tively appropriate, the Booker remedy would in practical
terms preserve the very feature of the Guidelines that
threatened to trivialize the jury right. For a presumption
of Guidelines reasonableness would tend to produce
Guidelines sentences almost as regularly as mandatory
Guidelines had done, with judges finding the facts needed
for a sentence in an upper subrange. This would open the
door to undermining Apprendi itself, and this is what has
happened today.
Without a powerful reason to risk reversal on the sen-
tence, a district judge faced with evidence supporting a
high subrange Guidelines sentence will do the appropriate
factfinding in disparagement of the jury right and will
sentence within the high subrange. This prediction is
weakened not a whit by the Court’s description of within-
Guidelines reasonableness as an “appellate” presumption,
8 RITA v. UNITED STATES

SOUTER, J., dissenting

ante, at 11 (emphasis deleted). What works on appeal
determines what works at trial, and if the Sentencing
Commission’s views are as weighty as the Court says they
are, see ante, at 8–12, a trial judge will find it far easier to
make the appropriate findings and sentence within the
appropriate Guideline, than to go through the unorthodox
factfinding necessary to justify a sentence outside the
Guidelines range, see 18 U. S. C. §3553(c)(2) (2000 ed.,
Supp. IV). The upshot is that today’s decision moves the
threat to the practical value of the Sixth Amendment jury
right closer to what it was when this Court flagged it in
Jones, and it seems fair to ask just what has been accom-
plished in real terms by all the judicial labor imposed by
Apprendi and its associated cases.
Taking the Booker remedy (of discretionary Guidelines)
as a given, however, the way to avoid further risk to Ap-
prendi and the jury right is to hold that a discretionary
within-Guidelines sentence carries no presumption of
reasonableness. Only if sentencing decisions are reviewed
according to the same standard of reasonableness whether
or not they fall within the Guidelines range will district
courts be assured that the entire sentencing range set by
statute is available to them. See Booker, supra, at 263
(calling for a reasonableness standard “across the board”).
And only then will they stop replicating the unconstitu-
tional system by imposing appeal-proof sentences within
the Guidelines ranges determined by facts found by them
alone.
I would therefore reject the presumption of reasonable-
ness adopted in this case, not because it is pernicious in
and of itself, but because I do not think we can recognize
such a presumption and still retain the full effect of Ap-
prendi in aid of the Sixth Amendment guarantee. But I
would not stop at rejecting the presumption. Neither my
preferred course nor the choice of today’s majority can
avoid being at odds to some degree with the intent of
 Cite as: 551 U. S. ____ (2007) 9

SOUTER, J., dissenting

Congress; there is no question that Congress meant to
impose mandatory Guidelines as the means of bringing
greater uniformity to sentencing. So I point out that the
congressional objective can still be attained, but that
Booker’s remedial holding means that only Congress can
restore the scheme to what it had in mind, and in a way
that gives full measure to the right to a jury trial. If
Congress has not had a change of heart about the value of
a Guidelines system, it can reenact the Guidelines law to
give it the same binding force it originally had, but with
provision for jury, not judicial, determination of any fact
necessary for a sentence within an upper Guidelines
subrange. At this point, only Congress can make good on
both its enacted policy of mandatory Guidelines sentenc-
ing and the guarantee of a robust right of jury trial.
I respectfully dissent.2

——————
2 Because I would ask the Court of Appeals to review the sentence for

reasonableness without resort to any presumption, I would not reach
the other issues in this case.